Comparative lawyers have long been fascinated with the study of how legal ideas circulate across jurisdictions and legal traditions. In some cases, this circulation has led to the creation of ‘mixed legal systems’, which include Scotland, as it displays a mixture between Civil law and English common law. Mixed legal systems therefore offer a fertile ground of investigation in this field and have attracted increasing attention in recent years. However, the use of the label ‘mixed legal system’ has led legal scholars to direct their attention primarily to the origins of the law in such systems and to emphasise what they have ‘imported’ from other legal traditions. This is true also of Scotland.
In a recently published article, I question the prevailing narrative and construction of the Scottish legal tradition, and of mixed legal systems more generally, as systems that primarily adopt ideas from abroad, rather than generating ideas capable of stimulating and shaping developments elsewhere. I do so by exploring the relationship between the Scottish and the English legal traditions through the lens of communication practices, as they evolve over time and space, paying particular attention to the language and the labels employed by legal actors.
The article is divided into two parts. The first part deals with the spatio-temporal dimension of communication practices. By exploring different shapes of temporality and space, the article demonstrates that it is by looking beyond discrete events and moments of transplantation, as well as the immediate geographical space, that we can appreciate that communication can take different forms and shapes and that legal change is a subtle interactive phenomenon. The second part focuses on language, and in particular on what is explicitly said, but also on what is not said. This generates insights into the various techniques and practices involved in communication, as well as the factors that drive or facilitate circulation. Both parts examine specific examples drawn from across different areas of the law and different time periods.
The article begins with an analysis of the temporal aspect of communication, drawing attention to the interconnectedness of events across time and space. It provides examples of where the circulation of ideas from Scotland was sequential (entering south of the border at successive stages, with each possibly facilitating or inviting the other) and where the adoption was deferred. The doctrine of forum non conveniens aside, another fascinating, though less well known, example is the area of declaratory orders. Two stages of the communication in this area are examined, each involving various steps and events, and over a prolonged period of time. The first one commenced in 1828 when Lord Brougham started advocating in support of the introduction of the Scottish declaratory action in England, and the second with Lord Dunedin’s seminal judgment in an English appeal to the House of Lords, in Russian Commercial and Industrial Bank v British Bank for Foreign Trade  2 AC 438 (HL). The article demonstrates how Lord Dunedin’s obiter dictum, in which he sets out a set of principles drawn from Scots law, influenced developments south of the border, but also that this process took time.
The article then explores the spatial dimension of communication by stressing the importance of going beyond the immediate geographical space/relationship, in this case between Scotland and England, and examining the broader spatial dimension. It shows that there are areas of the law where Scottish legal ideas have circulated south of the border not directly but via another jurisdiction (eg New Zealand), but also that ideas can sometimes come full circle, as was the case with the doctrine of diminished responsibility.
In the second part, the article focuses on the language employed by legal actors. It shows that paying attention to instances where the Scottish origins of an idea are openly acknowledged and inquiring what lies behind such open manifestations and acknowledgments, can provide insight into the motivations that underpin existing communication practices. At the same time, we also see that looking beyond the language employed is crucial. This is so for a number of reasons. For instance, explicit claims that the law is the same on both sides of the border can conceal attempts to assimilate the law, whether in one direction or the other. Here the article explores the recent Supreme Court decision in Woolway (Valuation Officer) v Mazars LLP  UKSC 53. The case deals with the valuation for non-domestic rates, namely tax on individual units of property, known in England as hereditaments. The decision aligns the law in England with the geographical test prevailing in Scotland and does so by means of a practice that has often been used to align Scots with English law, ie by claiming that the law is the same on both sides of the border.
At the same time, the article also demonstrates that the absence of acknowledgement or referencing of the Scottish provenance is not necessarily indicative of a lack of communication. On the contrary, it may be a way of disguising the appropriation of Scottish legal ideas or suggesting that they have been naturalised. A striking example here is the area of penalty clauses. In this case, the foundations for the later adoption of Scottish legal ideas were laid by the 1905 House of Lords decision in a Scottish appeal in Clydebank Engineering & Shipbuilding Co Ltd v Don Jose Ramos Yzquierdo y Catandeda  AC 6 (HL) 77. Ten years later, in the English case Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd  AC 79 (HL), Lord Dunedin formulated a set of tests derived from Scottish case law on penalty clauses, without however mentioning their Scottish origins. This test then became ‘the classic statement of the law of penalties’, which would be influential in a wide range of cases in England and beyond. Whether or not the lack of mention of the Scottish origins was deliberate is unclear, but it is likely to have paved the way for Scots law to circulate south of the border, forestalling possible negative or adverse rejections. Although at first the circulation took place in disguise, 90 years later, in 2005, in the Court of Appeal decision in Murray v Leisureplay Plc  EWCA Civ 963 , Arden LJ unexpectedly, and one could even argue emphatically, credits Dunlop (as well as the two Scottish appeal cases, Clydebank and Lord Elphinstone) with having exerted a formative influence on the English law of penalty clauses.
Thus, by examining concrete examples of communication involving both judges and legislatures, drawn from across different areas of law and different time periods, this article argues that contrary to the prevailing narrative, communication practices between Scotland and England are much richer and more dynamic than we tend to assume but also that comparative law can learn a lot from the study of communication practices both about mixed legal systems and about legal transplants.
Alexandra Braun is Lord President Reid Professor of Law, University of Edinburgh, a Visiting Research Fellow at the Institute of European and Comparative Law in Oxford and an Honorary Research Fellow at Lady Margaret Hall, Oxford.